BOARD DATE:	  15 March 2012

		DOCKET NUMBER:  AR20110017777 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests upgrade of his general discharge to an honorable discharge.

2.  The applicant states he was only a teenager when his misconduct happened and he realizes his responsibility for his actions.  His misconduct happened so long ago and aside from it, he was a good Soldier.

3.  The applicant did not provide any evidence.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was born on 17 June 1967 and he enlisted in the Regular Army at 18 years of age on 29 August 1985.  He completed training and he was awarded military occupational specialty 19K (M-1 Tank Armor Crewmember).

3.  He served in Germany from 30 December 1985 to 27 January 1988.  He was awarded the Army Service Ribbon, Army Achievement Medal, Overseas Service Ribbon, Expert Marksmanship Qualification Badge with Pistol Bar, and the Marksman Marksmanship Qualification Badge with Rifle Bar.

4.  On 9 September 1987, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana between 15 June and 15 July 1987.

5.  On 6 November 1987, he again accepted NJP under the provisions of Article 15, UCMJ for wrongfully using marijuana between 7 September and
7 October 1987.

6.  On 6 November 1987, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph
14-12c, for misconduct - commission of a serious offense - abuse of illegal drugs with issuance of a general discharge.

7.  The applicant acknowledged receipt of the commander's intent to separate him and subsequently consulted with legal counsel.  He was advised of the basis for the contemplated separation for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by and a personal appearance before a separation board.  He also elected not to submit a statement in his own behalf.  He further indicated he understood he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him and that he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge.

8.  Subsequent to this acknowledgement, the immediate commander initiated separation action against him in accordance with Army Regulation 635-200, paragraph 14-12c, for misconduct - commission of a serious offense - abuse of illegal drugs.

9.  On 21 December 1987, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct - commission of a serious offense - abuse of illegal drugs, with a General Discharge Certificate.  On 28 January 1988, the applicant was discharged accordingly.

10.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time confirms he was discharged under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct - drug abuse with a character of service of under honorable conditions.  This form further confirms he completed 2 years, 4 months, and 30 days of total active service.

11.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.

13.  Army Regulation 635-200, paragraph 3-7a states an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant committed a serious offense by unlawfully abusing illegal drugs on at least two separate occasions.  Accordingly, his chain of command initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  His discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.


2.  The applicant was 18 years of age at the time of his enlistment and he was over 20 years of age when he was punished for using drugs.  There is no evidence his drug use was caused by his age or that he was any less mature than other Soldiers who successfully completed their term of service.

3.  Based on the applicant’s record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x__  __x______  ___x_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ________x_______________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20110017777



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ABCMR Record of Proceedings (cont)                                         AR20110017777



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